For going on eight years America has been witness to a president unmoored to the constitution. Obama promised to use the “pen and a phone” to bypass Congress. Less well-known is how often his “pen and phone” have been used not only to bypass Congress but also to impose federal mandates on the states, trampling the Constitution’s separation of powers in every sense.
Our constitutional foundation rests on the principle of both horizontal and vertical separation of powers. As Richard Epstein and Mario Loyola have noted, the Constitution crafted by the Founders “divided power both horizontally (among the legislative, executive, and judicial branches) and vertically (between the federal and state governments).” Obama has run roughshod over all of it, and the transgender-school-bathroom order is only the latest example.
President Obama’s executive federalism is novel in that it undermines the basic constitutional procedures envisioned by the Founders. Under Obama’s rules of federal engagement, federal bureaucrats issue dictates from Washington, D.C., with no input from elected members of Congress. By way of “guidance letters” issued by federal agencies, the federal government has sharpened two very destructive strategies against local units of governments. Federal agencies will either threaten federal funding, thereby coercing local units of government to accept federal mandates, or require local units of government to essentially serve as administrative arms of the federal government, thereby commandeering these otherwise local units. In the most egregious examples, the federal government employs both techniques on unsuspecting local bureaucrats.
If Americans thought they controlled school policy by electing school boards, they best think again.
Recently the Department of Education and the Department of Justice issued to schools nationwide a joint “Dear Colleague” letter on transgender accommodations. But this letter is simply the most recent in a long line of guidance letters issued to local units of government. If Americans thought they controlled school policy by electing school boards, they’d best think again. In the most recent Dear Colleague letter, federal bureaucrats have set their sights on our nation’s children and their most private of gathering spaces: bathrooms, locker rooms, and showers.
The DOE and DOJ begin by suggesting that while the letter “does not add requirements to applicable law,” it should be considered “significant guidance” in that it “provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.” But simple “guidance” would not normally include the threat of significant harm to local school districts’ budgets if the Departments’ interpretation of Title IX is not fully embraced.
The “significant guidance” provided by the Departments is broad, touching on almost every facet of local education. It begins by stating unequivocally that a school must immediately begin treating a student consistent with his or her professed gender identity. The Departments quickly dispel any notion that schools could accommodate those who raise objections about the new transgender arrangements. It notes: “A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.”
While the application of Title IX to athletics, single-sex classes, and housing and overnight accommodations has raised obvious concerns, the real flash point centers on restrooms and locker rooms. A school must allow transgender students access to facilities consistent with the gender identity they prefer. But if that weren’t enough, a school “may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.” Therefore, offering reasonable individual accommodations to transgender students would not be considered an acceptable alternative under the guidance letter. Individual-user facilities are considered an acceptable alternative only if such individual-user options are available to all students who voluntarily seek additional privacy.
Several states have pushed back by filing federal lawsuits. The state of Texas, joined by ten other states and two school districts, has filed a complaint in the Northern District of Texas. A group of more than 50 parents recently filed suit against a suburban Chicago school district in the Northern District of Illinois. And the state of North Carolina filed its own complaint in the Eastern District of North Carolina.
As detailed in the Northern District of Texas complaint, the most recent Dear Colleague letter is but one in a long list of examples where the president has knowingly and intentionally bypassed Congress and the prerogatives of states and other local units of government.
In 2010, the Departments of Education and Justice issued the first major Dear Colleague letter, in which it discussed the issue of harassment and bullying. Despite zero mention of the transgender characteristic in Title IX, the letter planted the seed for the most recent letter when it asserted, “Title IX does protect all students, including . . . transgender (LGBT) students, from sex discrimination.” The letter also raised serious First Amendment concerns, namely as it relates to the ability of college campuses to encourage debate.
In 2011, the Department of Education’s Office of Civil Rights issued a letter finding that the “Title IX regulation requires schools to provide equitable grievance procedures, [in which] OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints.” This shift in standard, set in motion by alleged sexual-assault and rape cases on college campuses, was significant because it set forth a much lower evidentiary threshold than the previous “clear and convincing” standard, in the process “tipping the playing field against the accused,” as Senator James Lankford (R., Okla.), chairman of the Subcommittee on Regulatory Affairs and Federal Management, noted in a letter this spring to the Department of Education.
In 2012, the Department of Homeland Security issued a memorandum detailing its Deferred Action for Childhood Arrivals program. DACA allowed the Department “to exercise its ‘prosecutorial discretion’ not to expend its ‘enforcement resources’ on illegal immigrants who came to the United States before age 16 but are not older than 30.” This smaller executive action preceded the more far-reaching DAPA program, which came about in late 2014. Texas and 25 other states sued to block DAPA’s executive action. In May, 44 Republican Senators filed an amicus brief supporting the states’ challenge to the executive order. In June, the Supreme Court issued an order that keeps in place the Fifth Circuit Court of Appeal’s decision rejecting the administration’s DAPA argument. The decision is a significant rebuke to Obama’s claim that he could “change the law” by decree, and it could represent far greater challenges on the horizon.
In early 2014, the Departments of Education and Justice issued yet another Dear Colleague letter to local school districts. This one demanded that they meet federal law to administer student discipline without discriminating on the basis of race, color, or national origin. Recently, an extensive analysis of the Milwaukee Public School system was conducted. The impact of the letter on MPS’s disciplinary policy is aptly summarized in the title of the report: “Blood on the Blackboard.” According to the study, “many teachers believe a need to comply with federal guidelines and a fear of penalties and the potential loss of federal dollars pushed MPS administrators to reduce discipline numbers however possible; even going so far as to stop issuing suspensions or even detentions for clear violations of school rules.” The examples of violence that have ensued against teachers, administrators, and other students are almost beyond one’s imagination of what classroom dysfunction can look like.
In the wake of the disciplinary policies set out in the Dear Colleague letter, the violence against teachers, administrators, and other students is almost beyond one’s imagination.
The year 2014 proved to be an active one for trampling on the constitution. After the guidance letter on school discipline, the Office of Civil Rights issued a memorandum stating questions and providing answers on Title IX and sexual violence. Again, although there is not a single mention of the issue of transgender identity in Title IX, OCR opined that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”
Several months later, Attorney General Holder set his sights on redefining Title VII by issuing a memorandum regarding the Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964. There, he concluded that Title VII’s prohibition of sexual discrimination “encompasses discrimination based on gender identity, including transgender status.”
In 2015, OSHA got in on the fun by publishing guidance for employers regarding restroom access for individuals who identify as transgender. OSHA concluded that “all employees should be permitted to use the facilities that correspond with their gender identity,” which is “internal” and could be “different from the sex they were assigned at birth.”
This pattern of egregious and often hostile federal actions has not gone unnoticed. Since September 2015, Senator James Lankford has valiantly been sounding the alarm. Following the September hearing on whether federal agencies use regulatory guidance appropriately, Senator Lankford submitted a letter to Acting DOE Secretary John King, asking what legal authority the Department had relied on to issue the 2010 letter on harassment and bullying and the 2011 letter redefining the proper standard for equitable grievance procedures. The letter notes that because “the Dear Colleague letters advance substantive and binding regulatory policies that are effectively regulations . . . the letters should have been promulgated subject to notice-and-comment procedures — procedures that ensure that agencies hear from affected parties to create the best possible regulatory outcomes for all stakeholders.”
Senator Lankford wondered whether “perhaps OCR sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objections to the letters’ policies.” He quickly answered his own question by highlighting numerous complaints from the likes of 28 Harvard Law School faculty, 16 University of Pennsylvania Law School faculty, two Commissioners of the U.S. Commission on Civil Rights, and the former president of the American Civil Liberties Union, Nadine Strossen. Among other concerns, the Harvard Law School faculty concluded that the new sexual-harassment policy “departs dramatically from legal principles [developed by the Supreme Court and lower federal courts], jettisoning balance and fairness in the rush to appease certain federal administrative officials.”
The Department of Education responded, in February 2016, by relying on previously issued guidance letters to support its novel view of Title IX. Senator Lankford replied by noting, in a letter back to the DOE, that the “Dear Colleague letters create uncertainty surrounding policies proscribing conduct and advancing requirements required neither by Title IX nor its implementing regulations.” In particular, he characterized the Department’s explanation of citing prior letters as unpersuasive, in that “letters of findings carry no precedential value themselves and are a poor vehicle to alert regulated entities of new requirements.”
As to the merits of the 2010 letter on harassment and bullying, Lankford expressed concern about the letter’s impact on First Amendment speech. As to the merits of the 2011 letter on equitable grievance procedures, Lankford pointed out the harmful effects of a less rigorous standard of proof in claims of sexual assault: “School disciplinary proceedings, no matter how well-intentioned, are not courts of law” and do “not provide for many essential protections defendants in a court of law enjoy,” such as full legal representation or the right to cross-examine one’s accused.
Lankford concluded his letter with a powerful rebuke, one that other federal (and state) officials should take to heart:
Congressional oversight of agency action is a cornerstone to the checks and balances ensured by our Constitution.#… #Congress enacted the Administrative Procedure Act to safeguard against precisely these threats of administrative fiat, and agencies that spurn such procedures do so contrary to congressional design and at the expense of the American people.
After his exchange with the Department, Senator Lankford has boldly kept the pressure on. He continued his inquiry of the Department at a hearing six days later, where he grilled Acting Secretary King on the legal foundation for the Dear Colleague letters. Then, on the Senate floor days later, he rose to oppose Acting Secretary King’s nomination. In a statement that would prove prophetic, Lankford warned, “there are more Dear Colleague letters coming to our schools, and this agency will continue to make up the rules in a vacuum and threaten federal funding for those that dare not comply.” Two months later, the Departments issued the transgender Dear Colleague letter.
In response to the transgender Dear Colleague letter, Lankford in May instructed that “agencies may issue guidance only to ‘advise the public of the agency’s construction of the statutes and rules it administers,’ so long as its construction does not impose additional legal requirements and obligations beyond those found in the statutory or regulatory language itself.” Lankford left little doubt as to his view on the construction: “The Dear Colleague letter impermissibly extends Title IX’s regulatory reach by prescribing onerous and at times nonsensical obligations on recipient schools.”
Lankford highlighted the fact that not only was the Departments’ new interpretation of Title IX inconsistent with what was contemplated by Congress in 1972, but that such an interpretation was considered and rejected by the 114th Congress, “which considered expanding discrimination protections on the basis of gender identity as part of the debate over comprehensive elementary and secondary education reform last year but declined to do so.” In other words, not only are the Departments ignoring the original congressional intent behind Title IX from 40 years ago, they are ignoring the clear policy preferences of the current Congress. As Lankford concluded, “OCR has reached into policy territory unilaterally, impermissibly, and contrary to congressional intent.” Instead, it should have “waited for the American people to speak through their elected representatives by drafting and passing legislation.”
Unfortunately, this short list of examples represents only a fraction of agency actions under Obama that ignore the role of both Congress and the states in setting important public policy. The organization of private workplace restrooms, the ability of local school boards to balance the needs of students transitioning to a different sex with the privacy concerns of other students, the immigration status of children and students born to immigrant parents, and the ability of school administrators to reprimand disruptive students are all policy questions implicated by this short list of executive actions.
The nation it at a crossroads. We can pivot back to a constitutional form of government originally envisioned by the Framers, one that rests upon a separation of powers between the executive and legislative branches and that requires a competitive form of federalism between federal and state governments. Failing that, we can continue our devolution into a form of government in which the president rules by decree.